public cannot be measured by any such consideration; that the defendant owed to him the duty not to put into his hands as its customer a bottle charged with gas to that extent that it was dangerous to handle in the usual and customary method. The point is well taken. There is no evidence of what a prudent and reasonable man would do in bottling such explosive material. The evidence that other plants put up bottles of such beverages, which frequently exploded in like manner during the bottling, during transportation, and in the hands of customers, was not evidence that they were reasonable and prudent men, but, on the contrary, that they were as careless and negligent in their duty to the public and to their customers as this defendant. It does not exonerate this defendant that other establishments were careless and negligent. It is very certain that these establishments are not discharging their duty to the public and to their customers in putting out goods so prepared and bottled that there are numerous explosions liable to cause injury at any time, and which not infrequently have done so, as in Dail v. Taylor, 151 N. C. 287, 66 S. E. 135, 28 L. R. A. (N. S.) 949, and Cashwell v. Bottling Works, 174 N. C. 324, 93 S. E. 901.

(2) If the charge of the court were correct, it would license the defendant and other dealers in these highly charged carbonated drinks to place upon the market highly dangerous merchandise liable to explode and cause injury, such as the loss of plaintiff's eye, to all who handle these goods in the ordinary course of business without any liability on the part of the manufacturers. The manufacturer is liable even to the final purchaser, though there were no contractual dealings between them. Waters-Pierce Co. v. Deselms, 212 U. S. 159, 178, 179, 29 Sup. Ct. 270, 53 L. Ed. 453; Wellington v. Downer Co., 104 Mass. 64; Weiser v. Holzman, 33 Wash. 87, 73 Pac. 797, 99 Am. St. Rep. 932.

(3) It is not incumbent upon the plaintiff to show what precautions the defendant should take; that duty devolved upon the defendant, who was liable for negligence in putting such dangerous goods upon the market without sufficient precaution to make them safe. It may be that the defendant could have used wicker covering for the bottles such as is used for champagne bottles, or wire mesh cases as is used for certain goods of explosive nature. These would not prevent explosions, but would prevent the fragments of the glass doing much damage. Or the goods might be packed in sawdust, as is done with some goods such as aerated water liable to explosion. Or there

might be some harmless ingredient put in the decoction to prevent sudden expansion causing explosions a device that is not unusual. Or thicker bottles might be used, or there may be still other devices in this age in which "men have sought out many inventions." Ecclesiastes, c. vii, v. 28. But what is the best protection is one which the defendant must ascertain and use. It is certainly no defense for the defendant, who has placed dangerous and highly explosive merchandise upon the market which it knows has often exploded to the injury of its customers and others, to claim that other vendors and manufacturers in their pursuit of gain have been as indifferent to the safety of their customers and the public as the defendant itself.

"Safety first" for the public-if these goods are so inherently dangerous from their fre quent explosion and liability to cause damage, as by putting out the eye of the plaintiff, that they cannot be made safe, then placing them upon the market is indictable, as well as makes the manufacturers and all vendors liable to actions for any damage accruing. Ward v. Sea Food Co., 171 N. C. 33, 87 S. E. 958. Error.

NOTE.-Liability of Manufacturer of Carbonated Bottled Beverage for Injury to Third Person. The instant case is where one in direct privity with a manufacturer was injured by the explosion of an aerated beverage, but the principle upon which it was decided applies to whomsoever suffers injury from an article inherently dangerous being put upon the market for sale.

In Willey v. Wynderse, 151 N. Y. Supp. 280, 165 App. Div 620, there was reversal of nonsuit in a case where personal injury was sustained by a bartender, a customer of defendant, from the bursting of a beverage highly charged with gas, exerting great pressure, contained in a second-hand bottle defective in its make. The court said: "The bursting of a bottle was prima facie evidence of negligence. It is for the jury to say, where the manufacturer puts into a bottle a highly charged gas so that it exerts a pressure of sixty pounds to the square inch, whether he is not bound to make suitable tests of the strength of the bottle."

In Torgesen v. Schultz, 192 N. Y. 156, 84 N. E. 956, 18 L. R. A. (N. S.) 726, the facts show that a siphon bottle of aerated water put on the market exploded and injured the servant of a customer of defendant manufacturer of the water. The court speaks of the absence of all contract relation between plaintiff and defendant and holds that the proof by defendant was "insufficient to establish that the bottles would not explode when used as customers might be expected to use them. The defendant might reasonably be held chargeable with knowledge that it was customary, especially in hot weather, to place siphons charged with aerated water in contact with ice; and, in view of this fact, a jury might well find that the tests applied to such bottles

should be such as to render it tolerably certain that they would not explode when thus used. The expert evidence actually employed by the defendant was not adequate to justify such a conclusion."

This goes to show that it is not necessarily sufficient to show what is the practice in approved testing, but that testing should go further, if it does not cover all ways to which the product may be subjected, in ordinary or expected use of the product. In that case there was no proof of any defect in the siphon itself.

In O'Neill v. James, 138 Mich. 567, 101 N. W. 828, 68 L. R. A. 348, 110 Am. St. Rep. 321, 5 Ann. & E. Ann. Cas. 177, there was a sale of champagne cider, and this was placed in an ice box. A servant of a dealer was injured by a bottle exploding, while he was in the act of removing it from the ice box. Judgment in his favor was reversed, because the testimony did not show that the explosion could not have occurred, if the bottles had been charged in the usual way, and defendant showed it was properly charged and the explosion might have otherwise occurred. This was said to remit the question to the jury. The court said that: "Where no contractual relation exists, the doctrine is recognized that there must be knowledge of the dangerous character of the thing sold, before defendant can be held liable." We doubt, however, that this rule applied in that case.

In Weiser v. Holzman, 33 Wash. 87, 73 Pac. 797, 99 Am. St. Rep. 932, it was held generally, that where one knowingly delivers and sells to another an article intrinsically dangerous to human life or health, such as a poison, explosive or the like, and the purchaser is without notice that it is intrinsically dangerous and is injured thereby, he may be held liable without regard to any priority of contract. The principle was applied to a sale of champagne cider not properly charged with carbonic gas. It seems clear that proper charging means in a bottle properly tested and of sufficient strength to hold the contents which it contains. It would be entirely proper to sell a non-charged beverage in one kind of bottle, and to place a highly charged beverage in the same bottle gives it the potency of danger, the same as if the beverage sold contained poison or other substance dangerous to life or health. It seems to me there is little if any difference in the rule as to container or contents being dangerous, if the former from being defective imports danger in the use of the latter.

ITEMS OF PROFESSIONAL

INTEREST.

C.

PROGRAM OF THE MEETING OF THE OKLAHOMA STATE BAR

ASSOCIATION.

The Oklahoma State Bar Association meets this year at Oklahoma City, January 15 and 16, 1919.

According to the program just sent us Mr. Ed S. Vaught, of Oklahoma City, will welcome

the members, and Judge B. L. Tisinger, of Mangum, will respond, after which the President, Mr. E. G. McAdams, of Oklahoma City, will deliver the President's Address. Reports of committees will close the morning session. In the afternoon two papers will be read: one by Dean J. C. Monett, of Norman, on the "Soldiers' and Sailors' Relief Act;" and another by Mr. Strudell, of St. Louis, on the "War Risk Act, Including Allotments and Allowances."

On Thursday morning the annual address will be given by Hon. Geo. T. Page, President of the American Bar Association. His subject will be "First Line Trenches in Oklahoma." At this session a paper will also be read by Mr. Harry Smith, entitled "Federal Income Tax Act." At the afternoon session Mr. John H. Mosier, of Tulsa, will read a paper entitled "Commercial Arbitration." This will be followed by the election of officers, and in the evening by the usual annual banquet.

Harry Levey, of the Universal Theater in New York, spent a day recently with his friend, Fred Seitz, who has a butcher shop at East Hampton, L. I. A small colored girl came in the shop and asked for a ham she had left there to be smoked.

"I told you when you left it to come back in 30 days," said Seitz. "You're too early." "No, I ain't," replied the girl. "I'm right on time, 'cause my pop got 30 days fer stealing He came that ham the day I brung it here. out this mawnin' and asked where it was."St. Louis Post-Dispatch.

1. Attorney and Client-Attorney of Record. -Where attorney was dismissed before suit, his unauthorized signing of his name to the petition, in action brought by other attorneys, did not make him an attorney of record or add to his rights in regard to an attorney's lien.-Rawlings v. Louisville & N. R. Co., Ky., 205 S. W. 681. 2. Bankruptcy-Novation.-In view of Bankruptcy Act, §§ 70a and 47a2, a trustee of a bankrupt corporation may maintain an action to recover assets of the corporation which have been unlawfully diverted, where necessary to liquidate claims of creditors of corporation.--Miley v. Heaney, Wis., 169 N. W. 64.

3.Preference.-Where property comes into the possession of the bankruptcy court, it may sell the same free from liens, and award the lienholder a preferential payment, representing the proceeds of his lien; but such practice is of doubtful propriety, where the right to a lien is disputed. In re North Star Ice & Coal Co., U. S. D. C., 252 Fed. 301.

4. Recovery by Trustee.-Under Bankruptcy Act, § 70e, a trustee in bankruptcy may recover for the benefit of the estate property transferred in violation of the state law.-Irwin v. Maple, U. S. C. C. A. 252 Fed. 10.

5. Traveling Salesmen.-Partners, who sold goods for the bankrupt on a commission basis, maintaining their own office and not being bound to devote any particular amount of their time to a sale of the bankrupt's property, are not "traveling salesmen," within Bankruptcy Act July 1, 1898, so as to be entitled to priority as such.-In re Kominers, U. S. D. C., 252 Fed. 183.

6. Bills and Notes-Forgery.—If renewal notes were forged, they did not operate as pay

8.

Cancellation of Instruments-Foreclosure. -As all defenses in a foreclosure suit could have been urged against purchasers of nonnegotiable mortgage notes before maturity, with knowledge of outstanding equities between mortgagor and mortgagee, such purchasers in the mortgagor's action to cancel the mortgage and notes would stand in place of the mortgagee. Crawfis v. Edwards, Brewster & Clover, Cal., 175 Pac. 410.

9. Carriers of Passengers-Abusive Language.-A statement by a railroad station "You fellows agent, when closing a station: will have to get out of here. I am going to lock up-did not show any violence, or insulting or abusive language such as would warrant damages for mental anguish.-Davenport v. Chicago, M. & St. P. Ry. Co., Wash., 175 Pac. 298.

10. Certiorari-Reviewed by.-Review on certiorari is usualy limited to a mere inspection of record, to see whether judgment conforms therewith, or whether lower court exceeded its jurisdiction or abused its discretion, and generally the lower court's opinion is no part of record.-McCauley v. Imperial Woolen Co., Pa., 104 Atl. 617.

11.

of

Commerce Employes.-The foreman a bridge gang, killed in a collision while riding on a gasoline car after unloading concrete tiles to be used in the future in replacing wooden culverts in a railroad track, was not engaged in "interstate commerce". within the federal Employers' Liability Act (U. S. Comp. St. 1916, §§ 8657-8665).-Morrison v. Chicago, M. & St. P. Ry. Co., Wash., 175 Pac. 325.

12. Common Law-Customs. Whether the origin of a rule of the English common law of sales was general custom or statutory enactment, it was brought over by the founders of the American commonwealth, if it was unchanged at the time of their emigration.— Friend v. Childs Dining Hall Co., Mass., 120 N. E. 407.

13. Conspiracy-Espionage Act.-An indictment charging that defendants, in violation of Espionage Act June 15, 1917, conspired to urge and persuade persons subject to military discipline to disobey, etc., held sufficient; it not being necessary to aver all the means for carrying out the conspiracy.-United States V. Nearing, U. S. D. C., 252 F. 223.

14. Constitutional Law-Imprisonment for Debt.-A commitment for contempt for failure to pay a master's fee awarded by the court, made on application of the master, is not an "imprisonment for debt," but for refusal to obey the order of the court.-Cutting v. Van Fleet, U. S. C. C. A., 252 F. 100.

15. Contracts-Expectation. -Where lender, in negotiating contract, said he would "expect" to write half the fire insurance, the word "expect" was used in the secondary meaning, implying demand, and not anticipation.-Sillman v. Spokane Savings & Loan Soc., Wash., 175 Pac. 296.

16.Restraint Trade.-An of agreement that, in consideration of $1,000, defendant physician and surgeon would relinquish his business to plaintiff and retire from practice in the county for a period of 10 years, was not unreasonable and oppressive in its restrictions, either as to time or area.-Rowe v. Toon, Iowa, 169 N. W. 38.

17.--Waiver.-If the promisee insists upon performance, he waives the right to sue upon the promisor's repudiation of the contract, especially where the promisor does not himself retract in season.-Landes v. Klopstock, U. S. C. C. A., 252 Fed. 89.

Where

21. Courts Jurisdictional Facts. constitutional court of general jurisdiction has been given special statutory jurisdiction, and manner of exercise is pointed out, the record of such court must show jurisdictional facts. -Id. Wallace v. Hill, Ark., 205 S. W. 699. 22. Criminal Law-Variance.-A variance between the evidence and an unnecessary and immaterial allegation in an information charging a misdemeanor not prejudicial to defendants' rights will not compel a reversal of a conviction.-State v. Wright, Kan., 175 Pac. 381. 23. Damages-Minimizing.—A vessel injured and sunk in collision, which may be raised and repaired, can not be abandoned by the owner and treated as a loss; he must minimize damages.-Houchen V. Oregon-Washington R. & Nav. Co., Wash., 175 Pac. 316.

21.- -Special Damages.-In action for personal injuries, expenses for medical treatment are "special damages", and must be pleaded and proved.-Louisville Ry. Co. v. Schwemmer, Ky., 205 S. W. 685.

25. Descent and Distribution-Expectancy.The expectancy of an heir apparent is, during the life of his ancestor, a mere hope or antici

pation. In re Zimmerman's Will, N. Y., 172 N. Y. S. 80.

26. Divorce-Civil Contract.-Marriage is a civil contract between the parties, implying an obligation to support, in recognition of which alimony is allowed, which when liquidated by judgment is regarded as a debt by contract as well as by judgment.-Schooley v. Schooley, Iowa, 169 N. W. 56.

27. -Settlement of Property.-Settlement of property interests by the parties prior to action for divorce does not deprive the court of its authority under Rem. Code 1915, § 988, to make, and by attachment enforce, orders for the welfare of children, as payment for their support. -Miller v. Miller, Wash., 175 Pac. 295.

28. Dower Contingent Estate. Dower, though called an incumbrance, can not be otherwise than a contingent estate or interest, be-ing contingent in that it may be extinguished by wife's death before husband, and in that its amount is uncertain and variable, depending on value of property at husband's death.Kelly v. Minor, U. S. C. C. A., 252.

29. Election of Remedies.-Other Action.The mere bringing of an action which has been dismissed before judgment, in which no advantage has been gained or legal detriment occasioned, is not an election.-Lewis v. Powell, Tex., 205 S. W. 737.

.30.

-Primary Law.-Direct Primary Law of June 16, 1913, §23, as amended in 1917, precluding a candidate who failed to receive the highest number of votes cast for a nomination by the party with which he was affiliated 35 days before election, as evidenced by his affidavit of registration, from being the nominee of another party, is constitutional under Const. art, 2, §22, authorizing the Legislature to prescribe tests and conditions for candidates at primary election.-Heney v. Jordan, Cal., 175 Pac. 402. 31. Eminent Domain-Waiver.-Independently of waiver or estoppel, whatever right to damages in any form the owner of land which easement was taken by defendant town for a sewer may have had, whether entry of the town was lawful or unlawful, was a case in action, which did not pass to grantee under owner's deed. Howland V. Inhabitants of Greenfield, Mass., 120 N. E. 394.

in

32. Estoppel-State.-The state is not estopped by the unauthorized acts of its officers, but it is estopped by authorized acts of its officers to the extent of the power actually given them.-Wallace v. Hill, Ark., 205 S. W. 699.

33. Food-Sale for Consumption.-When one resorts to a tavern, inn, or eating place, for a consideration to be served with food for immediate consumption, and is received as a guest by the keeper, there is an implied duty to furnish food fit to eat.-Friend v. Childs Dining Hall Co., Mass., 120 N. E. 407. 34. Forgery-Intent.-Fraudulent intent is essential to constitute forgery.-Rickman v. State, Ark., 205 S. W. 711.

35. Fraud-Decoy Purchaser.-Where a decoy purchaser is made use of to corroborate or impress upon the prospective buyer a misrepresentation concerning the value of the property sold, or some other material fact, actionable fraud may result.-Miley v. Heaney, Wis., 169 N. W. 64.

36. Gas-Intervention.-Where gas company, under Pub. Laws 1912, v. 795, applied to Public Service Commission to fix rates, the city and town affected thereby, having intervened under rule 3 of the Public Utilities Commission, as authorized by section 17 of such act, had the right to appeal, notwithstanding section 34 limits the appeal to a "complainant."-Public Utilities Commission v. Providence Gas Co., R. I., 104 Atl. 609.

37. Gifts Undue Influence.-The equity rule requiring a parent to prove that a gift from a

child was bona fide, free from force, duress, or undue influence, does not apply to land deeded to a mother by a daughter of lawful age who did not own the land but merely received it from her father under promise to deed to the mother.-Haldeman v. Weeks, Ore., 175 Pac. 445.

38. Guardian and Ward-Order of Sale.-Purchaser of realty at guardian's sale must pay purchase money into guardian's hands pursuant to order of sale, and can not make payment by paying guardian's personal obligations and deducting amount thereof from purchase price. Harris v. Wilcox, Okla., 175 Pac. 352.

39. Indictment and Information-Bill of Particulars. Where an indictment charged that defendants conspired to impede enlistment service by public speeches, private solicitation, and the publication of a magazine, held, that they were entitled to a bill of particulars of the speeches, etc., relied on.-United States v. Eastman, U. S. D. C., 252 Fed. 232.

40.- Information Defining Offense.-Unless a statute creating an offense so defines it that it can not be properly described without negativing an exception, an indictment for violation thereof need not negative the exceptionUnited States v. Greenhaum, U. S. D. C., 252 Fed. 259.

41. Injunction Contempt. Persons amenable to an injunctional decree are subject to proceedings for contempt for its violation, without regard to the lapse of time since the decree, especially where the proceedings are criminal in character.-Tosh v. West Kentucky Coal Co., U. S. C. C. A., 252 Fed. 44.

42. Preliminary. Preliminary injunction should not issue, unless a reasonably clear case of necessity and otherwise irreparable injury is made out.-Louisville & N. R. Co. v. Western Union Telegraph Co., U. S. C. C. A., 252 Fed. 29.

43. Insurance-By-Laws.-Change in by-law relating to insurance of live stock and amount of risk by eliminating provision that liability should not exceed market value of animal lost held without effect on rights of parties in action on policy.-Brenn v. Farmers' Alliance Ins. Co., Kan., 175 Pac. 383.

44.-Imputable Knowledge.-Knowledge acquired by an association's medical examiner and local agent in the discharge of their duty in connection with the application, and in reporting it to insurer for its information before its final action on application, was to be imputed to insurer.-The Homesteaders v. Stapp, Tex., 205 S. W. 743.

45. Mortgagee.-Where mortgagee in possession of livery barn insured it, and on its loss by fire received a draft payable to himself and the owner of the premises, the owner having redeemed, was entitled to recover the insurance collected and held by the mortgagee.-Thress v. Zempel, N. D., 169 N. W. 79.

47.

a

Landlord and Tenant-Fire Escape.Where landlord placed ladder from roof of one story extension to window of third story for use as fire escape, and tenant's janitor while trying to teach tenant's rooms on third story, used ladder and was injured when it slipped, landlord was not liable as he owed no duty to make fire escape safe for such use: there being a stairway to third story.-Gillard v. Hoffman, Kan., 175 Pac. 395.

48.-Lien on Crops.-Where landlord, by express provision of lease, is given lien upon crops as security for rent, the lien is effectual, not only as regards the crops of the first year, but also as to those raised during subsequent years; the lien attaching when crop is planted. -La Grande Nat. Bank v. Oliver, Ore., 175 Pac. 434.

50.

Limitation of Actions-Curative Legislation. Statutes of limitations are curative, and confer rights of property, which are as much entitled to protection as any other legal right. -Fogle v. Baker, Tex., 205 S. W. 752.

51. Starting Point.-General rule is that statute of limitations begins to run from date of injury, and mere lack of knowledge of actionable wrong does not suspend it, nor does silence of wrongdoer, unless he has done something to prevent discovery; even concealment by him will not prevent running of statute, unless there is a good reason for injured person's failure to discover the wrong.-Harper v. Harper, U. S. C. C. A., 252 Fed. 39.

52. Master and Servant-Accidental Injury.Stroke from direct rays of sun, heat stroke, or prostration are "accidental injuries." within Workmen's Compensation Act June 2, 1915 (P. L. 736); it being immaterial whether prostration results from artificial heat or from sun's natural heat, directly or through heated atmosphere, if exhaustion results from heat in course of employment.-Lane v. Horn & Hardart Baking Company, Pa., 104 Atl. 615.

53. Assumption of Risk.-Servant's assumption of risk included employer's negligence, if he knew of negligence and appreciated danger incident to service.-Athletic Mining & Smelting Co. v. Sharp, Ark., 205 S. W. 695.

54. Inspection by Master.-A railroad is bound to inspect the cars of another railroad used on its road just as it would inspect its own cars, and owes such duty as master, and is responsible for the consequences of such defects as would be discovered by ordinary inspection.Rowe v. Colorado & S. R. Co., Tex., 205 S. W. 731.

55. Obvious Danger.-If the place of work is so obviously dangerous that a person of ordinary understanding and judgment, situated as the servant is, could by the exercise of ordinary care discover the danger in time to prevent injury. he can not recover. Hazard Coal Co. v. Wallace, Ky., 205 S. W. 692.

56. Proximate Cause. Where logs being rolled down a hill were stopped by a stump, and lumber company employe, while dislodging the logs with cant hook, miscalculated the effect of his effort, and, failing to get out of the way of the logs, was injured, the stump, not having caused logs to strike employe, was not proximate cause of injury.-D. E. Hewitt Lumber Co. v. Cisco, Ky., 205 S. W. 677.

Mortgages-Jurisdiction.-In foreclose mortgage, the court acquires jurisdiction of only so much of the subject-matter as is held by the parties before it.-Smith v. Pacific Improvement Co., N. Y., 172 N. Y. S. 65. ber 28th

59. Municipal Corporations

Negligence.

The city is not liable for damages from falling on steps on a sidewalk as part of an entrance to a building used as a post office, though they are out of repair, and though ice may have accumulated thereon.-Ellingson v. City of Leeds, N. D., 169 N. W. 85.

60. Navigable Waters-Floating Logs.-A stream capable in its natural state of floating sawlogs to market successfully is navigable for that purpose.-Guilliams V. Beaver Lake Club, Ore., 175 Pac. 437.